In a decision released on January 13, 2017, the Supreme Court of Canada dismissed an appeal from an order striking out a claim made against the Alberta Energy Regulator. This was a split decision of the Supreme Court, in that Cromwell J. delivered reasons for dismissing the appeal on behalf of himself and three other judges, Abella J. wrote separate reasons concurring in the result, and the Chief Justice and two other judges delivered a dissenting judgment with which Côté J. concurred.
The appeal arose from an action by the appellant against the Alberta Energy Regulator claiming that the Regulator had breached the appellant’s right to freedom of expression under the Canadian Charter of Rights and Freedoms by blocking her from certain communications with the Regulator.
The Regulator applied to strike out the claim on grounds that included reliance on a statutory “immunity clause.” The immunity clause provided that no action or proceeding could be brought against the Regulator in respect of any act or thing done purportedly in pursuance of the governing legislation. As noted by Abella J., the immunity clause is typical of provisions that have been enacted in legislation applicable to quasi-judicial and judicial bodies in Alberta and the rest of Canada. Abella J. said that these provisions protect the public interest by ensuring that adjudicative bodies responsible for making independent decisions are not casually or cavalierly dragged into litigation that drains their attention and public resources.
In his reasons for dismissing the appeal, Cromwell J. said it was plain and obvious that the immunity clause on its face bars the appellant’s claim for Charter damages; he referred to this as common ground among the parties. The issue for decision was whether the appellant had successfully challenged the constitutionality of the immunity clause. On her appeal to the Supreme Court, the appellant had reframed her position to add an assertion that the immunity clause is unconstitutional because it purported to bar her claim for Charter damages.
Cromwell J. considered certain factors relating to the circumstances of the Regulator, including the existence of an alternative remedy by way of judicial review and concerns that granting Charter damages would undermine the effectiveness of the Regulator and inhibit effective governance. He held that, when considered collectively, these countervailing factors negated the appropriateness of what might otherwise have been a functionally justified award of Charter damages. Cromwell J. said that opening the Regulator to damages claims would “distract it from its statutory duties, potentially have a chilling effect on its decision making, compromise its impartiality and open up new and undesirable modes of collateral attack on its decisions.” In short, damages are not an appropriate and just remedy for Charter breaches by the Regulator. Given that Charter damages are not an appropriate remedy, the immunity clause does not limit the availability of such a remedy and is not unconstitutional.
In her decision concurring with the dismissal of the appeal, Abella J. held that, the constitutionality of the immunity clause not having been challenged in the prior proceedings, proper notice and a full evidentiary record were lacking, and the Supreme Court should not entertain the constitutional argument. She also said it was likely that Charter damages would not be an appropriate and just remedy against the Regulator, but that a prior determination of the constitutionality of the immunity clause was required.
The dissenting judges took the view that, whether the countervailing factors are examined individually or collectively, the record in the Supreme Court did not support recognizing a broad, sweeping immunity for the Regulator in the particular case at hand, let alone in every case. Contrary to Cromwell J.’s statements, the dissenting judges said it was not plain and obvious that the claim was barred by the immunity clause – in their view it was arguable that the acts of the Regulator fell outside the scope of the statutory immunity. The dissenting judgment indicated that the matter should be returned to the Alberta courts to decide the important issues of free speech and Charter remedies raised in the case.